May 2015 Bar Bulletin
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May 2015 Bar Bulletin

Supreme Court Moves Washington in the Wrong Tribal Direction

By Gabriel Galanda and Amber Penn-Roco

 

In March, the Washington Supreme Court handed down State v. Shale, moving our state in the wrong direction on the subject of tribal criminal jurisdiction.1 The Court held that the State possessed jurisdiction over a crime committed by an Indian, in Indian Country, because the Indian was not a member of the tribe on whose reservation lands the crime allegedly occurred.

Like some of the Court's preceding Indian criminal law decisions, Shale moves against prevailing local and national policy that seeks to restore - not further erode - tribal criminal authority over criminal actors in Indian Country.

The Case

In Shale, the defendant was an enrolled member of the Confederated Tribes and Bands of the Yakama Nation, who was convicted of raping a child. After being released from prison, the defendant moved to Seattle, where he registered as a sex offender with King County.

By 2012, the defendant moved onto the Quinault Indian Nation's reservation, which traverses a pocket of remote Jefferson County along the coast. The State prosecuted and eventually convicted the defendant for failing to register as a sex offender in Jefferson County. Shale asserted that the State lacked jurisdiction to prosecute him, as the charged crime was committed on the Quinault Reservation and thus beyond state jurisdiction.

The jurisdictional facts of the case were left rather unclear despite guidance from the U.S. Supreme Court that "[t]he ownership status of Indian land ... may sometimes be a dispositive factor" in matters of tribal jurisdiction.2 The Court explained that during a joint investigation by Jefferson County and Quinault Nation police, "One officer" - it is unclear which - "went to Shale's father's home, which may have been in Clallam County, and spoke to Shale himself."3 The Quinault officer also "went to the Quinault reservation in Jefferson County ... and [learned] that Shale ha[d] been living on the reservation for approximately a year."4

Although Shale's trial testimony and the police reports "suggest" he was dividing his time between the two residences - meaning in two different counties and two different sovereign jurisdictions - the Court left that pivotal jurisdictional fact to guesswork.5 Further, because it was unclear whether Shale possibly "resided on fee, trust or allotment land" on the Quinault Reservation, the Court "assume[d] without deciding that he was living on trust or allotment land within the tribe's jurisdictional boundaries at the relevant time."6

Ultimately, after an extensive discussion of Washington's counterpart to federal Public Law 280 - whereby in 1963 the State unilaterally assumed certain criminal and civil jurisdiction over Indians in Washington Indian Country - and the State's progressive retrocession of that authority in favor of tribal governments that began in 1968, the Shale Court held that "the federal government accepted retrocession of state jurisdiction over members of the Quinault Indian Nation only while on their Quinault Reservation."7 As Shale was not a member of the Quinault Indian Nation, jurisdiction over him had not been retroceded by the State. Accordingly, the Court determined that the State possessed the power to prosecute him.


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